Washington Post Survey Could Provide Foundation For Redskins’ Trademark To Survive
May. 19, 2016|By Gregory B. Collins
Today, the Washington Post published the results of its poll regarding the Washington Redskins’ name. In that poll of 502 Native American adults, 9 in 10 Native Americans said they were not offended by the name “Redskins.” Given the recent media coverage on this issue, the results of this poll are surprising. As the Washington Post article notes, 23% of non-Native American adults it surveyed find the name offensive. Put another way, non-Native Americans are actually more offended (at least percentage-wise) by the Washington Redskins' name than Native Americans.
The poll results are more than just attention-grabbing, they may be legally relevant. Section 2(a) of the Lanham Act provides that “[n]o trademark ... shall be refused registration on the principal register on account of its nature unless it ... [c]onsists of or comprises … matter which may disparage ... persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.” On June 18, 2014, the Trademark Trial and Appeal Board (“the Board”) declared that the Redskins’ trademark is offensive to Native Americans and, therefore, ineligible for federal trademark protection under the Lanham Act. The Board concluded a “substantial composite” of Native Americans found the team’s name disparaging. In ruling, the Board explained that “a ‘substantial composite’ of the referenced group is not necessarily a majority.” The ruling was upheld on appeal by United States District for the District of Virginia Judge Gerald Bruce. Judge Bruce’s ruling was appealed by the Washington Redskins to the Fourth Circuit Court of Appeals. The team’s appeal is now fully briefed, but no decision has been rendered.
With the appeal pending in the Fourth Circuit Court of Appeals, on December 22, 2015, the Federal Circuit Court of Appeals ruled in a different case that Section 2(a) of the Lanham Act imposes impermissible content-based and viewpoint-discriminatory burdens on protected speech. In re Tam, 808 F.3d 1321 (Fed. Cir. 2015) (en banc). The Federal Circuit reversed a Board decision refusing to register a rock band’s mark, THE SLANTS, that the Board found disparaged Asian Americans. The United States sought review of this decision by the Supreme Court. On April 25, 2016, in an unusual move, the Washington Redskins requested that the Supreme Court essentially consolidate its appeal with Tam. The United States Supreme Court has not yet decided whether to hear Tam nor has it decided whether to consolidate the team’s case with Tam. Decisions are expected on these issues in the next couple of months.
With the procedural status of the Washington Redskins’ trademark laid out, we turn back to the survey conducted by the Washington Post. Obviously, the team’s first argument for reversing the cancelation of its registered trademark is the holding from Tam, that Section 2(a) of the Lanham Act is unconstitutional. Should that argument fail though, the team will need to convince either the Fourth Circuit or the Supreme Court that the Board wrongly applied Section 2(a) here. In finding “Redskins” disparaging, the Board relied on its determination that a “substantial composite” of Native Americans found the term offensive. The term “substantial composite” though does not appear in the statute and the Board has refused to define this term. Accordingly, on appeal, the team has argued the Board and the district court erred in applying Section 2(a) here; i.e., the team claims the “substantial composite” test is not the law. This is where the Washington Post survey, and surveys like it, come into play. If the team succeeds in convincing an appellate court that either “substantial composite” is not the test or that the Board needed to define “substantial composite” before applying it to the Washington Redskins’ trademark, the case will be remanded for a decision on this issue. There, the court or the Board will have to decide whether the less than 10% of Native Americans that find the name disparaging is a “substantial composite” of Native Americans.
We know a “substantial composite” is less than a majority, but is it less than 10%? We may soon find out.